Opinion
March, 1893.
Wayland E. Benjamin, for plaintiff (respondent).
David Welch, for defendants (appellants).
The action was by the lessor against the lessees under a sealed lease to recover upon the latter's express covenant to pay rent. The facts are unchallenged and the controversy relates only to the legal conclusion which is properly deducible therefrom. It appeared that the lessees assigned the lease to one F.C. Cannon with the written consent of the lessor thereunto required by the terms of the lease. Cannon covenanted to assume the rent and to perform all the covenants and conditions which the lessees had undertaken to perform. Thereafter, with knowledge of the fact of the assignment, the lessor accepted the next succeeding month's rent from the assignee.
On the trial defendants contended that they were discharged from liability for rent after the assignment of the lease and acceptance by the lessor of rent from the assignee. The justice below held otherwise, and from a judgment for plaintiff defendants appeal.
The judgment is unassailable. It does not plainly appear that the defense of surrender and acceptance of the lease was pleaded. Assuming, however, that it was, the facts do not as matter of law establish it. The assignment of the lease and the assumption by the assignee of the lessees' covenants are not inconsistent with the continued vitality of the lease if the assignee's covenant be regarded as additional security only. Hence, no intention to accept a surrender of the lease will be inferred. Smith v. Kerr, 108 N.Y. 31.
Nor does the substitution of one tenant in the place of another operate, as matter of law, to discharge the latter from future performance of his express covenants. Port v. Jackson, 17 Johns. 239, 479; Phelps v. Van Dusen, 3 Abb. Ct. App. Dec. 604; Harmony Lodge v. White, 27 Am. Rep. 492; Washington Natural Gas Co. v. Johnson, 10 Am. St. Rep. 553, and cases collated in the note, pp. 559, 562. It is apparent from his citation of cases that defendants' counsel does not distinguish between express covenants and implied covenants; the latter arise from the privity of estate and are extinguished when the privity ceases; the former, however, continue until discharged by performance, or agreement founded upon sufficient consideration, unless the estate demised is determined by the landlord's re-entry.
The judgment should be affirmed, with costs.
PRYOR, J., concurs.
Judgment affirmed.